1st Amendment "Freedom of Religion" clause

[Alan_Smithee]

That is an awesome piece of scholarship and clarity, Gfactor; congratulations!

Unfortunately, you should smack Little Ed with a copy of the federal code. The column is full of typographical errors (adison for Madison in P.5, duplication of Brennan argued for in P.30), incomplete and unlinked URLs, and sloppy and awkward blocking of long quotations.

Despite Ed’s worst efforts, though, the column remains one of the clearest and best accounts of Constitutional interpretive schools I’ve ever read.

Two points could do with some slight clarification, however. The difference between the “original meaning” and “textualist” schools of originalism is a bit confusing. I think I grok it–both look for the original meaning of the text, but the “original meaning” school holds that a single, authoritative meaning exists that would have been universally accepted at the time of origin, while textualists apply something more like a “reasonable man” test, while taking into account the appropriate time frame for the hypothetic reasonable man. Is that close?

Secondly, you quote Justice Scalia as writing that originalism is the “lesser of two evils.” What is the greater evil? What is there besides some form of originalism or another? Applying the modern meaning of the text?

Finally, although it was clearly beyond the scope of your article, I’m curious about the history of the 14th Amendment. Why did it take so long for the Establishment Clause to be applied to the states, compared to other parts of the Bill of Rights?

[Alan_Smithee]

Damn! I forgot to include a link, and I missed the edit window. :o

Here it is.

[Gfactor]

Thanks Alan Smithee. I’m actually on my way out the door right now. But I’ll respond to your questions when I return tomorrow.

[SkipMagic]

When someone gets a chance, the coding for links in the document needs to be switched from vB tags to HTML.

The report is great work as always, Gfactor.

[DSYoungEsq]

Dammit, I was NOT intending to read a scholarly work on one of my favorite subjects this morning. Thanks a lot…

[Nic2004]

Wow. A truly awe-inspiring piece Gfactor. What a fascinating read this morning. I had no idea of the complex and intertwined history of this misleadingly basic statement.
Consider ignorance fought this day.

[Gfactor]

@Alan Smithee

That is an awesome piece of scholarship and clarity, Gfactor; congratulations!

Thanks.

The column is full of typographical errors (adison for Madison in P.5, duplication of Brennan argued for in P.30), incomplete and unlinked URLs, and sloppy and awkward blocking of long quotations.

I think they are fixed now. These things go into the newsletter in raw form–Ed is still editing them.

Two points could do with some slight clarification, however. The difference between the “original meaning” and “textualist” schools of originalism is a bit confusing. I think I grok it–both look for the original meaning of the text, but the “original meaning” school holds that a single, authoritative meaning exists that would have been universally accepted at the time of origin, while textualists apply something more like a “reasonable man” test, while taking into account the appropriate time frame for the hypothetic reasonable man. Is that close?

Close. Both schools believe that there is one right answer to the question what does this provision mean? The original meaning folks think that one should look to the actual meaning assigned to the provision by those who adopted it–State ratifying conventions and those who selected them. For this, they look to debates, correspondence, and publications that were disseminated at the time. Textualists say one should begin with the text. If the text is clear, any meaning assigned to it is irrelevant. If the text is ambiguous, the textualists look for evidence of what a reasonable legislative or constitution-adopting body would have meant by the words in the statute. It’s about the words–not any subjective understanding or intention. But actual interpretation can be considered evidence of this kind of meaning, especially where better evidence is lacking, at least according to some textualists. And that’s what Scalia talks about in McCreary: Early decisions of government officials as evidence that the clause would not have been understood to create an impermeable wall of separation. He’s saying it’s unreasonable to conclude that politicians who did the things he describes–or at least didn’t object to them–could have meant that the clause created an impermeable wall between church and state.

Secondly, you quote Justice Scalia as writing that originalism is the “lesser of two evils.” What is the greater evil? What is there besides some form of originalism or another? Applying the modern meaning of the text?

Looks like that part got cut. Here’s what Scalia says about it.

It may surprise the layman, but it will surely not surprise the lawyers here, to learn that originalism is not, and had perhaps never been, the sole method of constitutional exegesis. It would be hard to count on the fingers of both hands and the toes of both feet, yea, even on the hairs of one’s youthful head, the opinions that have in fact been rendered not on the basis of what the Constitution originally meant, but on the basis of what the judges currently thought it desirable for it to mean. That is, I suppose, the sort of behavior Chief Justice Hughes was referring to when he said the Constitution is what the judges say it is. But in the past, nonoriginalist opinions have almost always had the decency to lie, or at least to dissemble, about what they were doing – either ignoring strong evidence of original intent that contradicted the minimal recited evidence of an original intent congenial to the court’s desires, or else not discussing original intent at all, speaking in terms of broad constitutional generalities with no pretense of historical support. The latter course was adopted, to sweep away Taft’s analysis, in Humphrey’s Executor, which announced the novel concept of constitutional powers that are neither legislative, nor executive nor judicial, but “quasi-legislative” and “quasi-judicial.” It is only in relatively recent years, however, that nonoriginalist exegesis has, so to speak, come out of the closet, and put itself forward overtly as an intellectually legitimate device. To be sure, in support of its venerability as a legitimate interpretive theory there is often trotted out John Marshall’s statement in McCulloch v. Maryland that “we must never forget it is a constitution we are expounding” – as though the implication of that statement was that our interpretation must change from age to age. But that is a canard. The real implication was quite the opposite: Marshall was saying that the Constitution had to be interpreted generously because the powers conferred upon Congress under it had to be broad enough to serve not only the needs of the federal government originally discerned but also the needs that might arise in the future. If constitutional interpretation could be adjusted as changing circumstances required, a broad initial interpretation would have been unnecessary.

http://www.joink.com/homes/users/ninoville/lesserevil.asp

He also says:

I also think that the central practical defect of nonoriginalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned.

*Id. *

Finally, although it was clearly beyond the scope of your article, I’m curious about the history of the 14th Amendment. Why did it take so long for the Establishment Clause to be applied to the states, compared to other parts of the Bill of Rights?

I think I know the answer to this, but I want to review a few things before I try to respond.

[Blake]

@Gfactor

I think they are fixed now. These things go into the newsletter in raw form–Ed is still editing them.

He still hasn’t got them all.

“or whatever from they may adopt to teach or practice religion”
And a supplementary question. If “Neither a state nor the Federal Government can… pass laws which aid one religion, aid all religions, or prefer one religion over another.” then how can churches get special tax breaks etc.? Surely this is a law which aids all religions.

[Gfactor]

@Blake

He still hasn’t got them all.

Thanks, I passed it on to Ed.

And a supplementary question. If “Neither a state nor the Federal Government can… pass laws which aid one religion, aid all religions, or prefer one religion over another.” then how can churches get special tax breaks etc.? Surely this is a law which aids all religions.

A line of cases begining with Walz v. Tax Comm’n holds that providing religious organizations isn’t an establishment. According to Justice Burger:

The legislative purpose of a property tax exemption is neither the advancement nor the inhibition of religion; it is neither sponsorship nor hostility. New York, in common with the other States, has determined that certain entities that exist in a harmonious relationship to the community at large, and that foster its ‘moral or mental improvement,’ should not be inhibited in their activities by property taxation or the hazard of loss of those properties for nonpayment of taxes. It has not singled out one particular church or religious group or even churches as such; rather, it has granted exemption to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations which include hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups. The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest. Qualification for tax exemption is not perpetual or immutable; some tax-exempt groups lose that status when their activities take them outside the classification and new entities can come into being and qualify for exemption.

Governments have not always been tolerant of religious activity, and hostility toward religion has taken many shapes and forms-economic, political, and sometimes harshly oppressive. Grants of exemption historically reflect the concern of authors of constitutions and statutes as to the latent dangers inherent in the imposition of property taxes; exemption constitutes a reasonable and balanced attempt to guard against those dangers. The limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause. To equate the two would be to deny a national heritage with roots in the Revolution itself. See Sherbert v. Verner, 374 U.S. 398, 423 , 1804 (1963) (Harlan J., dissenting); Braunfeld v. Brown, 366 U.S. 599, 608 , 1148 ( 1961). See generally Kauper, The Constitutionality of Tax Exemptions for Religious Activities in The Wall Between Church and State 95 (D.Oaks ed. 1963). We cannot read New York’s statute as attempting to establish religion; it is simply sparing the exercise of religion from the burden of property taxation levied on private profit institutions.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=397&invol=664

Burger gets credited with creating the entaglement prong ofthe Lemon test:

Determining that the legislative purpose of tax exemption is not aimed at establishing, sponsoring, or supporting religion does not end the inquiry, however. We must also be sure that the end result-the effect-is not an excessive government entanglement with religion. The test is inescapably one of degree. Either course, taxation of churches or exemption, occasions some degree of involvement with religion. Elimination of exemption would tend to expand the involvement of government by giving rise to tax valuation of church property, tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes.

Granting tax exemptions to churches necessarily operates to afford an indirect economic benefit and also gives rise to some, but yet a lesser, involvement than taxing them. In analyzing either alternative the questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement. Obviously a direct money subsidy would be a relationship pregnant with involvement and, as with most governmental grant programs, could encompass sustained and detailed administrative relationships for enforcement of statutory or administrative standards, but that is not this case. The hazards of churches supporting government are hardly less in their potential than the hazards of government supporting churches;3 each relationship carries some involvement rather than the desired insulation and separation. We cannot ignore the instances in history when church support of government led to the kind of involvement we seek to avoid.

The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state. No one has ever suggested that tax exemption has converted libraries, art galleries, or hospitals into arms of the state or put employees ‘on the public payroll.’ There is no genuine nexus between tax exemption and establishment of religion. As Mr. Justice Holmes commented in a related context ‘a page of history is worth of volume of logic.’ New York Trust Co. v. Eisner, 256 U.S. 345, 349 , 507 (1921). The exemption creates only a minimal and remote involvement between church and state and far less than taxation of churches. It restricts the fiscal relationship between church and state, and tends to complement and reinforce the desired separation insulating each from the other.

Separation in this context cannot mean absence of all contact; the complexities of modern life inevitably produce some contact and the fire and police protection received by houses of religious worship are no more than incidental benefits accorded all persons or institutions within a State’s boundaries, along with many other exempt organizations. The appellant has not established even an arguable quantitative correlation between the payment of an ad valorem property tax and the receipt of these municipal benefits.

Finally, he tied everything up by considering history:

It appears that at least up to 1885 this Court, reflecting more than a century of our history and uninterrupted practice, accepted without discussion the proposition that federal or state grants of tax exemption to churches were not a violation of the Religion Clauses of the First Amendment. As to the New York statute, we now confirm that view.

Here is a long series of articles from the New York Times that discusses some of the issues:

As Exemptions Grow, Religion Outweighs Regulation (Published 2006)

Where Faith Abides, Employees Have Few Rights (Published 2006)

Religious Programs Expand, So Do Tax Breaks (Published 2006)

http://www.wwrn.org/article.php?idd=23016&con=4&sec=59

[Elendil_s_Heir]

Great column! As to the Framers’ views on religious freedom, I would add this timeless comment from George Washington’s letter to the Touro Synagogue, Newport, Rhode Island, August 17, 1790:

“…The citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection, should demean themselves as good citizens, in giving it on all occasions their effectual support…”

Papers of George Washington: Presidential Series, Vol. 6, pp. 284-286 (University of Virginia Press, 1996)

[Dan_Norder]

Boy, the writer of the original question was sure ignorant.

Ignorance well fought there.

[DSYoungEsq]

@Dan Norder

Boy, the writer of the original question was sure ignorant.

Ignorance well fought there.

So, unfortunately, are many judges and justices who write decisions involving it. <sigh> :o

Great Job, Gfactor! I’ll drop by with comments later; the weekend has been rough for some weird, green reason…

[Gfactor]

@Alan Smithee

Finally, although it was clearly beyond the scope of your article, I’m curious about the history of the 14th Amendment. Why did it take so long for the Establishment Clause to be applied to the states, compared to other parts of the Bill of Rights?

Ok. This is a trick question, really. It *didn’t * take so long compared to other parts . . . most of them took a long time.

The First Amendment, in general was first applied to the states in 1925, but the Court didn’t address the religion clauses until the 40s. The court didn’t invalidate a state blasphemy law until 1952. Levy says that the last blasphemy *prosecution * in the U.S. was in 1968. Even so, the First Amendment was really first one to be incorporated (bits and pieces of a few other amendments came first.)

As recently as 1949, the high court announced, in Wolf v. Colorado that “in a prosecution in a State court for a State crime the Fourteenth Amendment does *not * forbid the admission of evidence obtained by an unreasonable search and seizure.” http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=338&invol=25 (Empasis added.)

The Fourth and Fifth Amendments, in general didn’t get applied to the states until the 1960s.

The excessive fines clause was only applied explicitly to the states in 2001.

Here’s a chart: Incorporation of the Bill of Rights - Wikipedia

[Gfactor]

@Gfactor

A line of cases begining with Walz v. Tax Comm’n holds that *providing religious organizations * isn’t an establishment.

Should be * providing exemptions for religious organizations from neutral legal requirements * isn’t an establishment.

[Sophistry_and_Illusion]

Gfactor–let me add to the chorus of praise. A very thorough, interesting, and exhaustively researched piece. Bravo! (And it just confirms my pessimistic opinion that it is damn near impossible to have an informed opinion on most topics, since doing so requires the possession of so much information.)

Anyhow, I was wondering if you know of a book or other work that, for the literate layperson, lays out the various positions on constitutional interpretation and the evidence/arguments for and against each. I don’t feel like I can responsibly hold opinions on how the various amendments should be read unless I know whether to endorse originalism, constructionism, the Living Constitution view, etc. I would be grateful, if you know of such a work, if you could recommend a title.

[Bricker]

I don’t know whether to indulge my jealousy for GFactor’s awesome piece of research and reporting by stewing silently or announcing it publicly.

Aw, hell.

Great work.

[Gfactor]

@Sophistry and Illusion

Anyhow, I was wondering if you know of a book or other work that, for the literate layperson, lays out the various positions on constitutional interpretation and the evidence/arguments for and against each. I don’t feel like I can responsibly hold opinions on how the various amendments should be read unless I know whether to endorse originalism, constructionism, the Living Constitution view, etc. I would be grateful, if you know of such a work, if you could recommend a title.

Ok, as far as breaking down the various schools, I find William Eskridge’s work to be most helpful. There are a few books, and each one covers the material differently–and covers a slightly different group of theories (just to make it a bit more fun):

Constitutional Law: Themes for the Constitution’s Third Century: http://www.amazon.com/Constitutional-Law-Constitutions-American-Casebook/dp/031414353X/ref=sr_1_3/103-5741627-2438207?ie=UTF8&s=books&qid=1174309154&sr=1-3 has a very good discussion of most of the theories of constitutional interpretation.

But his book: Legislation and Statutory Interpretation: http://www.amazon.com/Legislation-Statutory-Interpretation-Concepts-Insights/dp/1566627982/ref=sr_1_4/103-5741627-2438207?ie=UTF8&s=books&qid=1174309154&sr=1-4 covers interpretive theory more thoroughly and also has a great discussion of legislation and representation theory, more generally. I started reading this one, but stopped when I realized it wasn’t on point for the way the report was going. Now that I’m done doing focused research for this report, I’ll probably go back and finish this one.

Dynamic Statutory Interpretation http://www.amazon.com/Dynamic-Statutory-Interpretation-William-Eskridge/dp/0674218787/ref=sr_1_10/103-5741627-2438207?ie=UTF8&s=books&qid=1174309154&sr=1-10 also has a good rundown of the theories.

The last two deal expressly with statutory interpretation, as opposed to constitutional interpretation, but most of the theories cross over or get used in constitutional interpretation, too.

If you want expositions of theories by their proponents, Scalia’s book: A Matter of Interpretation: Federal Courts and the Law: http://www.amazon.com/Matter-Interpretation-Federal-Courts-University/dp/0691004005/ref=pd_bbs_sr_1/103-5741627-2438207?ie=UTF8&s=books&qid=1174310208&sr=1-1 is probably the best current explanation of textualism. It’s not too long, and Scalia is a good writer. You can read an online version called the Tanner lectures, but you’ll miss criticism from Ronald Dworkin, Mary Ann Glendon, Lawrence Tribe, and Gordon Wood and Scalia’s responses to them.

As far as earlier originalism, Originalism: The Lesser Evil: http://www.joink.com/homes/users/ninoville/lesserevil.asp is a good start. And for a very good collection of the important essays on the originalism debate, Interpreting The Constitution: The Debate Over Original Intent: http://www.amazon.com/Interpreting-Constitution-Debate-Original-Intent/dp/1555530796/ref=sr_1_3/103-5741627-2438207?ie=UTF8&s=books&qid=1174310581&sr=1-3

It’s a bit tougher to find an easy explanation of the case for non-originalist theories.

Brennan, William, “The Constitution of the United States: Contemporary Ratification” reprinted at 25 South Texas Law Review 433 (1986) also in the Rakove book and sometimes available online is the classic

A current, but very complicated explanation is Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution: http://www.amazon.com/Freedoms-Law-Reading-American-Constitution/dp/0674319273/ref=sr_1_9/103-5741627-2438207?ie=UTF8&s=books&qid=1174311194&sr=1-9 (just the introductory essay).

Of course, a complete understanding of the broader theories would require a review of:

Hart, The Concept of Law: http://www.amazon.com/Concept-Law-Clarendon/dp/0198761236 (legal positivisim)

Hart & Sacks’ The Legal Process: Basic Problems in the Making and Application of Law: http://www.amazon.com/Hart-Sacks-Legal-Process-Application/dp/1566622360/ref=pd_bbs_1/103-5741627-2438207?ie=UTF8&s=books&qid=1174311450&sr=1-1 (a book that was much discussed, but never actually published until very recently. Nevertheless, it’s influence on modern legal thinking is substantial).

Fuller, The Morality of Law: http://www.amazon.com/Morality-Law-Revised-Storrs-Lectures/dp/0300010702/ref=pd_bbs_sr_1/103-5741627-2438207?ie=UTF8&s=books&qid=1174311901&sr=1-1 (the natural law classic)

Llewellyn, Bramble Bush: On Our Law and Its Study: http://www.amazon.com/Bramble-Bush-Our-Law-Study/dp/0379000733/ref=pd_bbs_2/103-5741627-2438207?ie=UTF8&s=books&qid=1174311525&sr=1-2 (legal realism)

Kelman, A Guide to Critical Legal Studies: http://www.amazon.com/Guide-Critical-Legal-Studies/dp/0674367561/ref=pd_bbs_sr_2/103-5741627-2438207?ie=UTF8&s=books&qid=1174311607&sr=1-2 (A very tough read, but, sadly, one of the best works on the CLS movement).

[Gfactor]

@Bricker

Great work.

Thanks Bricker.

[RiverRunner]

@Dan Norder

Boy, the writer of the original question was sure ignorant.

What was so ignorant about the question?

RR

[Gfactor]

@RiverRunner

What was so ignorant about the question?

RR

Technically, he didn’t say the question was ignorant–only its author.

I don’t know specifically what **Dan Norder ** had in mind, but I’d say that describing a nonexistent clause and then making claims about its clear purpose doesn’t show him in the best possible light. His main (mostly implied) question (Why was the establishment clause included in the Bill of Rights, what is it meant to prohibit, and how did we get to the current state of confusion?) is a smart one.